A surprising defense against cyber harassment

Journalists have generally opposed defamation laws because they so often are used against news organizations to stifle free expression. Now, faced with repeated misinformation, threats of violence, and other efforts to undermine their credibility, reporters have begun using these laws to protect themselves against online harassment, and to fight back against their trolls. 

In Finland, France, Peru, and South Africa, journalists or governments have used defamation laws against online harassers. Peruvian investigative journalist Gustavo Gorriti, who currently has several cases underway, says that simply starting the legal process caused four of his defamers to issue retractions.

“I don’t think a lawsuit should be the answer of first resort,” Gorriti said in a phone interview. “But when you have a determined criminal organization of trolls and a mob attacking you, then of course you should be able to ask for legal protection. Journalists should take a much more determined approach to fighting back.” 

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Gorriti found himself targeted for harassment after he reported on payments by the Brazilian construction firm Odebrecht to Peruvian President Alan Garcia. Supporters of Garcia and former President Alberto Fujimori began to attack Goritti, accusing him of bringing the “Jewish mafia to Peru” and being in league with George Soros. The attacks worsened after Garcia’s death in April 2019, when prominent politicians correlated Garcia’s suicide with Gorriti’s reporting. First he was attacked online with memes, tweets, and inappropriate reports requesting takedown of his Facebook videos. In June, a small crowd began picketing his office, some with signs linking Gorriti to the Communist Party and to Soros. Gorriti began by exposing the trolls and blogging about them, documenting their links to Fujimori, who had been jailed for embezzlement and ordering killings while he was in office. Then Goritti—inspired, he says, by Finnish journalist Jessikka Aro, who in 2018 won damages and legal costs in her own defamation case against a right-wing, pro-Russian alternative media site—decided to sue. He is asking for damages and jail time; though he doesn’t expect to receive a financial reward, he says that’s not the point of the lawsuit.

In many cases, harassment and threats prevent journalists from doing their jobs. A 2018 survey of 597 women journalists around the world by Troll Busters and the International Institute for Women’s Studies found that 63 percent had experienced online harassment, and 37 percent had changed their coverage by avoiding certain stories as a result. A 2019 survey by the Committee to Protect Journalists found that many newsrooms did little to help women journalists who were being harassed online.

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While the UN’s Declaration of Human Rights protects free expression “without interference,” many countries lack adequate protections for journalists facing online harassment, leaving them to try their hand at defamation cases.  Yet such lawsuits can produce a terrible backlash, and Michelle Ferrier, the founder of Troll Busters, says most of the journalists she works with are reluctant to bring them.  “I advocate it as a tactic, knowing full well and with caution that this route is fraught with retaliation and not-so-good outcomes,” Ferrier wrote in an email. 

Veteran South African journalists Anton Harber and Thandeka Gqubule felt they had no option. In 2017, Harber and Gqubule filed civil defamation charges after Winnie Madikizela-Mandela gave an interview alleging that Harber and Gqubule had worked for the South African secret police during the apartheid era. The interview first ran on HuffPost in 2017. The site took the interview down and apologized. But both Harber and Gqubule said in court filings that they became the subject of hundreds of vicious tweets that included calls for their death. They sent multiple cease-and-desist letters to the Economic Freedom Fighters, a political party that was circulating and amplifying the Madikizela-Mandela claim, but these were ignored. Finally, worried about their reputations, they decided to file civil defamation charges, asking for R1 million (almost $70,000) in damages, which they would donate to charity. Last week, the court ruled on the side of the plantiffs.

“As a journalist, I have a deep aversion to defamation litigation,” Harber said in an email. “We want the freedom to say strong things, even push the bounds of acceptable speech, and not have defamation law used to silence us – so we have to give others the same respect. We only embarked on this civil action because we could see no other way to stop things being said that were hurtful and harmful, even dangerous.” 

Journalists at Rappler, the feisty Philippines news site that has extensively covered the killings and human rights violations of President Rodrigo Duterte’s drug war, have been harassed by critics, including Duterte’s administration. However, the editors don’t go after harassers through the courts, because they believe that many laws restricting freedom of expression should be abolished.  

That is the position of many free expression advocates, too. In a report for the Organization for Security and Cooperation in Europe (OSCE),  Jonathan McCully notes that a number of European and international human-rights bodies, including the European Court of Human Rights, are opposed to criminal sanctions for defamation.

“Criminal penalties for harm to reputation have a greater potential to exert a chilling effect on free expression, and criminal defamation laws at a global level are frequently abused to silence opponents and critics,” said McCully, a legal advisor to the Berlin-based Digital Freedom Fund, which funds strategic litigation on digital rights. 

The OSCE calls for criminal defamation laws to be replaced by civil defamation laws, and for the recognition of online harassment as a threat to journalists. It recommends setting up “swift, low-cost, low-burden remedies” for journalists who have been harassed. Many of these have already been instituted in France, which defined online harassment for the first time in 2014, then broadened the definition with a 2018 law “against sexual and sexist violence.” French law protects people from doxing, defamation, insult, and harassment, both online and off. These laws allow journalists to focus on the cyber harassment without needing to delve into whether trolls’ claims are true. 

US law gives far less protection to journalists than to publishers, and all kinds of speech are broadly protected by the First Amendment.  “I’d be very surprised if journalists bringing defamation lawsuits against harassers would be a successful tool in the US generally. It’s just very difficult,” said Scott Griffen, deputy director of the International Press Institute, which has researched defamation laws around the world.

There are plenty of reasons why journalists might choose not to sue. Sarah Guinee, a research fellow at the Knight First Amendment Institute who previously researched online harassment at the Committee to Protect Journalists, notes that most of the journalists harassed online are women and are often reluctant to go to court. Lawsuits can be costly, time consuming, and emotionally draining. They can drag on for years. Much of the harassment is aimed at eroding the credibility of the journalists; defamation suits can open up their personal lives to scrutiny.

To sue someone on defamation charges, one thing you have to do is prove that the statement is false,” says Guinee. “If there was a coordinated campaign saying that the journalist slept with someone who leaked information to her, are you really going to litigate your sexual history?”

Guinee has found in her research that “journalists were discouraged from pursuing legal remedies. They are told either to do journalism investigations about their harassers or ignore the harassment.” She points out, though, that investigating and exposing harassers is “kind of a win for the harassers, because the journalists are putting their energy into that instead of the reporting that incensed the harassers in the first place.”

Chloe Oldham assisted with the research for this piece.

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Anya Schiffrin is the director of the media and technology specialization at Columbia University’s School of International and Public Affairs. She is a PhD candidate at the University of Navarra.